West Virginia responds to mask lawsuit

CHARLESTON — In federal court documents, an attorney for Gov. Jim Justice argued against a request by a Putnam County business for a restraining order to halt an expanded executive order requiring masks in indoor public places.

Attorney Ben Bailey, the outside counsel representing the governor’s office, filed a response Thursday to an emergency motion for a preliminary injunction and a temporary restraining order against the mask mandate by Andrew and Ashley Stewart, owners of Bridge Cafe and Bistro.

The case was filed in the U.S. District Court for the Southern District of West Virginia on Sept. 15. The Stewarts filed the original lawsuit against Justice, the Putnam County Commission and Rick Snaman, a registered sanitarian with the Putnam County Health Department. The Putnam County Commission has since been dropped from the lawsuit with Snaman joining in Justice’s response in a filing Friday.

The Stewarts allege their constitutional rights were violated by the July 7 mask order, which requires people to wear face masks or face coverings in all indoor public buildings. The order was amended Nov. 13 to require masks indoors even when people can socially distance from others.

Exemptions include children under the age of 9, people with breathing issues, people who require assistance to putting on or taking off a mask and people actively eating and drinking.

A day later, the Stewarts posted on the Facebook page for Bridge Cafe that some of their employees were not going to wear face masks, encouraging their customers to “make a decision for yourself, and allow others to do the same.”

“This included (the Stewarts), given their beliefs that they also should be free to make their own choices, and that they respected the liberties and choices of their employees and customers, and that they weren’t going to force anyone to wear a mask,” wrote John Bryan, attorney for the Stewarts, in his Sept. 15 court filing.

According to the complaint, Snaman saw the Facebook post and contacted the Stewarts, warning them that their restaurant would be shut down by the health department if they didn’t comply with the governor’s mask executive order, giving them until the end of the week to comply.

After an inspection, the Stewarts gave in and required employees to wear masks.

“(The Stewarts) have continued to comply with the mask mandate, against their strongly felt beliefs and views,” Bryan wrote. “However, they only did so, and only continue to do so, under continued threat of closure…”

The Stewarts claim their 1st Amendment right to freedom of expression was violated, that their 14th Amendment rights to procedural and substantive due process was violated and the 14th Amendment right to equal protection, their 4th amendment protections against warrantless search and seizure were violated and Justice was violating the separation of powers between the executive and legislative branches with his executive orders.

Thursday’s response by the governor’s office to the amended motion by the Stewarts was similar to another federal lawsuit brought against Justice’s executive orders that temporarily closed bars in Monongalia County during the summer and early fall due to rising COVID-19 cases among West Virginia University students, a case that was decided in Justice’s favor by U.S. District Judge John Bailey on Oct. 27.

According to Bailey, 35 other states have mask-wearing requirements and so far every court challenge to mandatory mask orders have been ruled against. Bailey said the federal court has no jurisdiction over state executive orders as long as they fall within state and U.S. constitutional powers.

Bailey also argued the Stewarts would likely lose the case on the merits, especially their constitutional arguments.

In his response, Bailey said the Stewarts’ constitutional right to free speech was not being hindered by the mask mandate and they were free to express their opinions about whether the mandate was necessary.

“The governor’s executive order simply requires everyone to wear a mask in public indoor spaces,” Bailey wrote. “(The Stewarts) are still free to state their viewpoint, no matter how wrong and conspiratorial it may be. They can scream it from the mountaintops; they can post it on their social media (as they have done); they can complain to their legislators. Nothing in the executive order impinges in any way on their speech.”

The Stewarts’ arguments that their rights of due process were violated don’t hold up because they are unable to show how the executive order takes away assets from their business, Bailey wrote.

“The only interest that (the Stewarts) contend that the governor infringed upon was ‘the right to pursue their lawful business’ free of the mask mandate,” Bailey wrote. “But the ‘right to do business’ has not been recognized as a constitutionally protected right. Doing business is a privilege, subject to licensure by the state, health regulations, alcoholic beverage regulations, employment regulations, and local government concerns.”

“The idea that the governor could be obliged to provide a hearing to every restaurant or person affected by an executive order in the face of a global pandemic is at best a misunderstanding of the law and at worst a disingenuous waste of the court’s and counsel’s time,” Bailey continued.

According to both Bailey’s brief and news reports, Bridge Cafe is closed temporarily due to COVID-19 infections among staff at the restaurant.

Steven Allen Adams can be reached at sadams@newsandsentinel.com.


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